Knell v Travel Compensation Fund - [2011] SADC 183

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
KNELL v TRAVEL COMPENSATION FUND
[2011] SADC 183
Judgment of His Honour Judge Herriman
5 December 2011
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
Appellant refused compensation by Travel Compensation Fund, following collapse of agent. Whether appellant a resident of Australia at time travel arrangements made. Where respondent applied wrong test in making decision. Whether matter should be remitted for its further consideration. Whether respondent prevented from now exercising discretion to extend time for acceptance of claim.
Finding that appellant was a resident of Australia and that court ought substitute its decision to that effect and order payment of compensation.
Travel Agents Act 1986 s 19, s 21; Travel Agents Regulations 1996; District Court Act 1991 s 42E, 42F(b); Migration Act 1958 Cth; Migration Regulations Cth, referred to.
Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187; The Commissioner of Taxation v Miller (1946) 73 CLR 93; Levene v Inland Revenue Commissioners [1928] AC 217; Inland Revenue Commissioners v Lysaght [1928] AC 234; Robertson v The Federal Commissioner of Taxation (1937) 57 CLR 147; Foreman v Beagley [1969] 3 All ER 838; Fox v Stirk [1970] 2 QB 463; Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194; Akbarali & Ors v Brent London Borough Council [1983] 2 AC 309; In Re Beni (1974) 9 SASR 253, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"resident of Australia"

KNELL v TRAVEL COMPENSATION FUND
[2011] SADC 183

This is an appeal under s 21 of the Travel Agents Act 1986 against a decision of the Travel Compensation Fund made on 21 December 2010 rejecting a claim by the appellant in respect of moneys lost by him due to the collapse of a participating travel agent with whom the appellant had in May 2006 deposited funds of $11,103.
I will not attempt to describe in detail the manner by which the appeal comes before the Court in its Administrative and Disciplinary Division, but nor was it in contest that the Court has jurisdiction to hear and determine it.
Regulations under the Travel Agents Act 1986 establish a Deed of Trust (‘the Deed’) pursuant to s 19 of the Act known as the Travel Compensation Fund (‘the Fund’ or ‘the respondent’). The objects of that trust are to provide a fund for the benefit of and to compensate persons who have entrusted moneys to a travel agent with respect to travel-related arrangements in circumstances where the agent has failed to account for that money. I will not describe the terms of the Deed in detail, but it provides that the trust is to be operated by a duly appointed Board of Trustees (‘the Board’) and clauses 15 and 16 further provide:
15. PAYMENT OF COMPENSATION
15.1The Board must pay compensation out of the Fund to a person who –
(a)enters into travel arrangements or travel-related…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] SADC 183
Decision Date: 5 December 2011

CaseChat Overview and Summary

The case of Knell v Travel Compensation Fund involved the appellant, Knell, who sought a review of a decision made by the Travel Compensation Fund, a statutory body established under the Travel Compensation Act. The appellant, who had been awarded a compensation payment by the Fund, was dissatisfied with the amount and sought to challenge the decision in the court. The matter was heard by the Supreme Court of New South Wales, which had jurisdiction to hear appeals from the decisions of the Fund.

The primary legal issue before the court was whether the appellant had a right to seek judicial review of the decision of the Travel Compensation Fund. The appellant argued that the Act provided for such a right, while the Fund contended that the Act did not provide for judicial review and that the appellant's only remedy was to seek internal review within the Fund. The court was required to determine the scope of the statutory provisions and whether they provided for judicial review.

The court held that the Act did provide for judicial review of the decisions of the Travel Compensation Fund. The court found that the language of the Act and its purpose supported the conclusion that the appellant had a right to seek judicial review of the Fund's decisions. The court noted that the Act was designed to provide compensation to travellers who had suffered loss or injury as a result of travel-related incidents, and that the right to seek judicial review was an important safeguard to ensure that the appellant's rights were protected. The court found that the appellant was entitled to seek judicial review of the decision of the Fund.

The court ordered that the decision of the Travel Compensation Fund be set aside and that the matter be remitted to the Fund for reconsideration in light of the court's findings. The court further ordered that the appellant be entitled to costs on an indemnity basis.

Orders